DIRECT APPEAL

When you appeal a conviction or sentence, you are asking that a higher court reverse your case’s outcome from a lower court—from the trial court. In a direct appeal, you argue to the criminal appeals court that you deserve a new trial or a new sentencing hearing because your rights were violated during your trial court proceedings. If your initial appeal is denied, then you could potentially appeal to the next higher court, all the way up to the United States Supreme Court.

You cannot appeal a conviction or sentence if you entered a plea agreement. If you entered a plea agreement, then you may consider filing a post conviction relief petition as a type of substitute for an appeal.

Direct Appeal

Parties to a Direct Appeal

Appellant

  • The appellant is the party that files the direct appeal to appeal a conviction.
  • In trial court, you are the defendant. When you appeal a conviction or sentence, then you become the appellant.

Appellee

  • The appellee is the party that responds to a direct appeal.
  • In trial court, the prosecution (or the state) is the plaintiff. If you appeal a conviction or sentence, then the prosecution becomes the appellee.

Results of a Direct Appeal

The different results that can come out of a direct appeal are:

  • Affirmed conviction and sentence. If the criminal appeals court affirms your conviction and sentence on appeal, then the outcome of your case in the trial court remains the same.
  • Reversed conviction or sentence. The criminal appeals court may reverse your conviction or sentence. It then remands (or returns your case) to the trial court with orders for a new trial or new sentencing hearing.
  • Modified conviction or sentence. The criminal appeals court may, on its own, change your sentence or correct your conviction to comply with the law. This is done without sending the case back to the trial court.

Direct Appeals from the Superior Court

A direct appeal from the Superior Court is reviewed and decided by the Arizona Court of Appeals. For death penalty cases, the direct appeal is filed with the Arizona Supreme Court.

The rules and statutes that apply to your appeal include:

  • Rule 31 of the Arizona Rules of Criminal Procedure
  • Arizona Revised Statutes, Title 13: Criminal Code, Chapter 38: Miscellaneous, Article 18: Appeals.

The 6 steps to appeal a conviction or sentence include:

1. Notice of Appeal

  • You have 20 days from the date of your sentencing to file a Notice of Appeal in Superior Court. The Superior Court clerk then sends the notice out to the relevant parties, including to the Arizona Court of Appeals. The Court of Appeals then gives your direct appeal an appellate case number.

2. Preparing the Record on Appeal

  • Record on Appeal. To hear your direct appeal, the Court of Appeals will need the official court record from what happened in your case in Superior Court. This is called the Record on Appeal.
  • After you file your Notice of Appeal, the Superior Court clerk prepares an Index of all the documents in the Superior Court’s file. A copy of this Index will be given to all the parties. You can use this Index to help you decide if you need to add anything to the Record of Appeal. Also, if anything is missing from the Index, then you should file a motion in the Superior Court to correct the Index and the Record on Appeal
  • Automatic Records Included. The Record on Appeal generally automatically includes:
    • An Index of all the documents in the Superior Court’s file
    • All documents filed in the Superior Court before you filed your Notice of Appeal. This includes documents like all court minute entries and orders, State and Defense motions, exhibit lists, and transcripts.
    • All documents, papers, books, and photographs that were admitted into evidence.
    • Certified transcripts of certain court hearings, including transcripts of:
      • Any voluntariness hearing or hearing to suppress the use of evidence
      • Trial proceedings (but not jury selection)
      • Any aggravation or mitigation hearing
      • Sentencing hearing
      • Any probation violation proceeding
  • File Notice of Designation of Record. You have 30 days after you file a Notice of Appeal to file a Notice of Designation of Record with the Superior Court to add any item that is not already part of the court record being prepared for direct appeal.
    • It is important to make sure that the Record on Appeal has everything you need that is helpful for your direct appeal.
    • If you do not ask to include a transcript of a hearing that is not already part of the automatically prepared record, then you will not be able to use what was said at that hearing to support your direct appeal. You may be left with nothing or with the limited information in the court minute entries for that hearing.
    • For example, let’s say that one of the issues you are raising on appeal is that the trial court violated your rights during jury selection. You must file a Notice of Designation of Record to add transcripts of all the days of jury selection. These transcripts are not automatically included in the Record on Appeal.
    • Other examples of the types of hearings for which you must specifically order transcripts include: grand jury proceedings, initial pretrial conferences, comprehensive pretrial conferences, trial management conferences, status conferences, hearings or oral arguments on motions (other than voluntariness motions and motions to suppress evidence).
    • The exception is for death penalty cases, for which transcripts of all recorded proceedings are automatically included.
  • Delivery of the Record on Appeal. The Superior Court clerk is in charge of giving the Record on Appeal to you, the State, and the Arizona Court of Appeals. Typically, the record is delivered electronically. Physical copies are only given if necessary.
  • Initial Notice. The Court of Appeals Clerk will give the parties an Initial Notice that it has received the complete record from the Superior Court Clerk. This Initial Notice will also include the deadlines to file the appellate briefs.

3. File Briefs

  • Opening Brief. You, the appellant, have 40 days after the date of the above-discussed Initial Notice to file an Opening Brief with the Arizona Court of Appeals. Your Opening Brief is where you make your arguments that your conviction or sentence should be reversed. There are specific rules you must follow regarding how you write your brief in terms of formatting and content.
  • Answering Brief. The prosecution, the appellee, has 40 days after your opening brief is served to file an Answering Brief.
  • Reply Brief. Then you have 20 days after the Answering Brief is served to file a Reply Brief. Otherwise, you may file a notice that you will not be filing a reply brief.

 The direct appeal will then be considered to be “at issue” with the Court of Appeals.

4. Request Oral Argument

  • You have 10 days after the due date of your final Reply Brief to file a separate request for oral argument on your direct appeal. Your request must state why you are requesting oral argument.
    • The prosecution/appellee may also ask for oral argument.
    • The Court of Appeals may also order oral argument on its own without a request.
  • Denying Oral Argument Request. The Court of Appeals does not have to grant a request for oral argument if it determines it to be unnecessary. The Court of Appeals will give the parties written notice if it decides that that there will be no oral argument on the appeal. Most cases before the Court of Appeals are decided without oral argument.
  • Notice of Oral Argument. If the Court of Appeals grants a request for oral argument, or orders oral argument on its own, then the Court of Appeals clerk will give the parties notice. The notice will include the time and place for oral argument and how much time each side gets. You will receive the notice at least 20 days before the date of the oral argument.

5. Notice of Decision by the Arizona Court of Appeals

  • After all the briefs have been filed and any oral argument has been heard, then you wait for the Court of Appeals to file a Notice of Decision.
  • The Notice of Decision will state the date the Court of appeals filed its decision and include a copy of its decision.
  • In its decision, the Court of Appeals may reverse, affirm, or modify the action of a lower court. It may also issue orders to the lower court in connection with its decision.

6. Motion for Reconsideration or Petition for Review

  • Whoever loses the direct appeal may file a Motion for Reconsideration with the Court of Appeals or file a Petition for Review with the Arizona Supreme Court.
  • Motion for Reconsideration. This is a motion requesting the Court of Appeals to reconsider its decision. You do not need to file a motion for reconsideration before you can appeal to the Arizona Supreme Court.
    • You have 15 days after the entry of the decision by the Court of Appeals.
    • The other side does not have to file a response to a motion for reconsideration unless the Court of Appeals to file a response.
    • Note: The Court of Appeals will not grant a motion for reconsideration without requesting the other side to file a response.
  • Petition for Review to the Arizona Supreme Court. This is a petition asking the Arizona Supreme Court to review the decision of the Court of Appeals.
    • Filing Petition for Review. You have 30 days after the Court of Appeals enters its decision to file a Petition for Review. But if you filed a Motion for Reconsideration with the Court of Appeals, then you have 15 days after the entry of the decision on the motion for reconsideration to file the petition. There are specific rules you must follow regarding how you write your petition in terms of formatting and content.
    • Response to Petition for Review. The other side has 30 days after the Petition Review has been served to file a response.
    • You may not file a reply to the response to your petition for review unless the Arizona Supreme Court enters an order authorizing a reply. The order will set the deadline to file the reply.
    • Denying or Granting Review. The Arizona Supreme Court will either issue an order denying review or granting review of your case. If it grants review, then the Arizona Supreme Court will specify which issues it will review. And the Arizona Supreme Court may allow the parties to file supplemental briefs and/or set oral argument.
    • Motion for Supplementation or Oral Argument. If the Arizona Supreme Court’s order granting review does not say anything about filing supplemental briefs or oral argument, then you can file a motion requesting either or both. You have 15 days after the notice of the order granting review to file the motion.
    • Decision by the Arizona Supreme Court. After all the filings are done and any oral arguments are heard, then you wait for the Arizona Supreme Court to issue its decision. The Arizona Supreme Court may reverse, affirm, or modify the action of a lower court. It may also send the appeal back to the Court of Appeals to consider certain issues.

appeal a conviction

Direct Appeals from a Justice or City Court

When you want to appeal your misdemeanor conviction or sentence from a City Court or Justice Court, then you must file your appeal with the Superior Court.

The rules and statutes that apply to your appeal include:

  • The Superior Court Rules of Appellate Procedure – Criminal
  • Any Local Rules of Practice and Procedure for the specific City Court or Justice Court
  • Any Local Rules of Practice for the specific county’s Superior Court
  • Arizona Revised Statutes, Title 22: Justice and Municipal Courts, Chapter 3: Criminal Proceedings in Justice Courts, Article 5: Appeals.
  • Arizona Revised Statutes, Title 13: Criminal Code, Chapter 38: Miscellaneous, Article 18: Appeals.

The 7 steps to appeal a conviction or sentence from a city court or justice court with the Superior Court include:

1. Notice of Appeal

  • You have 14 days from the date of your sentencing to file a Notice of Appeal in the city court or justice court. The city court or justice court will typically have a Notice of Appeal form that you can complete and file.

2. Ordering the Record on Appeal

  • Record on Appeal. To hear your appeal, the Superior Court will need the official court record from what happened in your case in the city court or justice court. This is called the Record on Appeal. It includes items such as court orders, motions filed, audio/video recordings of hearings, or written transcription of hearings.
  • File Designation of Record on Appeal. You have 14 days after you file a Notice of Appeal to file a Designation of Record on Appeal. In your Designation of Record on Appeal you must list all the items needed for the Record on Appeal.
  • Pay for Record on Appeal. If you have not been declared financially in need by the court, then you must pay for the Record on Appeal. This can be costly, especially if you need to pay for transcript preparation fees. For example, in Maricopa County Superior Court, records of 90 minutes or more must be transcribed into a written format. You have 14 days after you file a Notice of Appeal to pay for the record or transcript preparation fees.

3. File Appellate Memoranda

  • Appellant’s Memorandum. You, the appellant, have 60 days from the deadline to file your Notice of Appeal to file your Appellant’s Memorandum with the city court or justice court. So, this means you have 74 days from the date of your sentencing to file your Appellant’s Memorandum.
    • Request Oral Argument. If you want oral argument, then you have to request oral argument in the caption of your appellant’s memorandum. This does not guarantee oral argument.
  • Appellee’s Memorandum. The prosecution, the appellee, then has 30 days from the date you filed your appellant’s memorandum to respond by filing an Appellee’s Memorandum with the city court or justice court. If the prosecution does not file a memorandum, it does not mean that it admits to any errors. The matter is simply deemed submitted on the record and the appellant’s memorandum.
  • Reply Memorandum. You are not allowed to file a Reply Memorandum unless the Superior Court authorizes you to file one.

4. Entire Case is Sent to the Superior Court

  • After the appellate memoranda have been filed, then the city court or justice court has 30 day to send the case to the Superior Court. This includes the record on appeal and the appellate memoranda.

The appeal gets assigned to a Superior Court judge. You should receive a minute entry notifying you of the assignment.

5. Oral Argument, if Ordered by the Superior Court

  • The Superior Court may order oral argument on your appeal. You may also request oral argument, but you have to do so in the caption of your filed appellant’s memorandum.
  • Oral argument is usually limited to 5 or 10 minutes for each side. And you are not allowed to call witnesses or present new evidence during oral argument.

6. Superior Court Issues Ruling

  • After considering the record on appeal, the appellate memoranda, and any oral argument, the Superior Court will issue its ruling. A copy of the ruling will be sent to you, the prosecution, and the city court or justice court.
  • The Superior Court ruling may do any of the following:
    • Reverse your city court or justice court conviction or sentence. If this occurs, then the Superior Court will send your case back to the city court or justice court for a new trial or sentencing hearing.
    • Reverse your city court or justice court conviction and direct that you be acquitted.
    • Affirm your city court or justice court conviction and sentence.
    • Affirm your conviction but modify your sentence. If this occurs, then the Superior Court will send your case back to the city court or justice court with directions to follow.

7. Motion for Rehearing

  • If you lose your appeal of conviction or sentence, then you have 14 days after the Superior Court’s ruling/order to file a Motion for Rehearing.
  • You are not allowed to further appeal the Superior Court’s final ruling/order to a higher court. The exception is if your case involves the validity of a statute or a required payment, such as a tax, assessment, or fine. The Arizona Court of Appeals has interpreted this to mean that it can only review appeals regarding the unconstitutionality of a statute—not the unconstitutional application of a statute to a specific defendant.

appellate lawyer

Appellate Lawyer

The criminal appeals process has many steps and often involves complex legal analysis. As a result, it can be very expensive to go through with a direct appeal if you have to hire an appellate lawyer. A direct appeal should only be pursued if there are real appealable issues in your case. Contact an experienced appellate lawyer at Feldman & Royle to discuss your appeal options.